Thursday, April 30, 2009

This is going to hurt me more than it hurts you

Hugo Chávez's comment on President George W. Bush at the U.N. in 2006, "The devil came here yesterday and it smells of sulfur still today," was a gratuitous and mean-spirited insult.

But not to President Bush – to the Devil. Even though the President of Venezuela is not known for his diplomatic finesse, being compared to such a lightweight must have wounded Luciferian pride.

The least Chávez could have done was to accurately target his politico-theological barbs. Perhaps the only one in the Bush administration with the gravitas to stand up to the comparison was then Vice President and current Marketing Director for the Spanish Inquisition, Dick Cheney.

Despite his reputation as a heavy, however, even Cheney's spoon wasn't long enough to sup with His Satanic Majesty.

If we can believe Dante, the Prince of Darkness is a connoisseur of torture. The nine rings of Hell are full of testimonies to the ingenuity of his cruelty, each torment elegantly calibrated to a specific sin. For example, those guilty of violence against humans are thrown into a river of boiling blood in the Seventh Circle; below them in the Eighth Circle, corrupt politicians wallow in a lake of burning pitch, and fraudulent advisers are consumed by flames.

The best the Veep's people could come up with was shopworn tactics from Torquemada and ham-handed stunts like slamming heads into walls that could have been licensed from the World Wrestling Federation. To add insult to injury, they called them "enhanced interrogation techniques," which makes them sound like some kind of focus group. Satan would no doubt be deeply offended at being mentioned in the same breath.

Outside of Hades, torture may be good at persuading people to sign false professions of faith or confessions of crime. But any information gained from abuse is inherently unreliable, which is one reason why courts won't accept it.

Many of the people with real operational knowledge of the interrogations of Al Qaeda suspects do not believe the torture detailed in the Justice Department memos provided useful information. Ali Soufan, an FBI agent who earlier had interrogated Abu Zubaydah with traditional [non-torture] techniques, wrote in the New York Times that months before being tortured Zubaydah had been cooperative and provided "important actionable intelligence".

"There was no actionable intelligence gained from using enhanced interrogation techniques [torture] on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics," he wrote. "In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified."

Even Stephen G. Bradbury of the Justice Department, who authored some of the memos, acknowledged in one: "It is difficult to quantify with confidence and precision the effectiveness of the program" that tortured the prisoners.

In effect, the whole debate over whether or not torture "worked" to help prevent acts of terrorism is a diversion, because by its nature the effectiveness of torture is not knowable with any confidence.

In the unlikely case that usable information was obtained from a prisoner who had been tortured, how could anyone know if it was the torture that caused the prisoner to provide the information? They would have to be able to get inside the prisoner's head and review the entire experience in captivity to understand motivations. It's not as though they can run double-blind studies or animal tests. Torture is an art, not a science.

Most damningly, even if it appears to the torturers that torture was successful in extracting intelligence, it is inherently impossible to determine whether the same information could have been elicited by legal interrogation methods. They can never step in that same river again to retry different tactics. While the interrogators may have become frustrated with their lack of progress and felt that they needed to use harsher means, that does not necessarily make their perceptions accurate or mean that different non-torture means would not have worked just as well.

Both torturer and victim have ample and contradictory reasons to misrepresent causality to anyone trying to investigate. On the inflicting side, for example, any interrogator who admitted torturing would have a strong incentive to inflate the importance of the results obtained.

Even if the efficacy of torture could be evaluated, however, and even if it turned out to be effective at wringing information out of terrorist suspects, it would still be a crime against humanity and a reckless endangerment of national security.

The Geneva Conventions and laws of war were not made up by bleeding-heart liberals who wanted to hamstring Jack Bauer of "24". They evolved from experience over the past 150 years. The Third Convention on prisoners of war was adopted because most nations and their militaries recognized that they could reduce the likelihood of torture of their own captured soldiers by the enemy by agreeing not to torture enemy prisoners.

Civilization, such as it is, depends on such webs of trust: they are painstakingly woven and painfully easy to tear apart. When Al Qaeda killed thousands of innocent civilians on September 11, they blasted a small hole in those webs, but strengthened the United States while discrediting themselves. Most of the world reacted with an outpouring of sympathy and support for the victims and revulsion with the terrorists.

One of the most serious of the Bush administration's sins against the security of this country was to convert that solidarity into widespread condemnation of a neo-imperial war launched with contemptuous lies, and accompanied by serial attacks on the international social and legal fabric.

The Justice Department memos and other evidence now reveal that that the torture of prisoners was partly an effort to fabricate a justification for that war. "High Bush officials put heavy pressure on Pentagon interrogators to get Mohammed and Zubaydah to reveal a link between Saddam Hussein and the 9/11 hijackers," wrote Marjorie Cohn, professor at the Thomas Jefferson School of Law.

The Bush administration, most notably Cheney and Rumsfeld, wanted "to find evidence of cooperation between al-Qaeda and the late Iraqi dictator Saddam Hussein's regime," according to McClatchy News, citing a former senior US intelligence official and a former Army psychiatrist.

Well before the Justice Department memos, President Bush had issued a determination that "Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, did not apply to al-Qaeda or Taliban detainees," according to a Senate Armed Services Committee report. One of the Justice Department memos suggested that as commander-in-chief, the President could override the federal anti-torture statute.

In the Bush administration's Hobbesian worldview, only a stealth Leviathan unrestrained by puny laws could save us from the "warre of each against each". Beyond any tactical purposes, a major strategic goal of torturing captives and invading Iraq, along with many of the Bush administration's other initiatives, appears to have been to establish the unchallengeable power of a Unitary Executive above constitutional checks and balances, national and international law, treaties and human rights.

What is emerging into daylight looks like an effort to roll history back to before Watergate and breathe new life into Nixon's circular self-justification: "When the president does it that means that it is not illegal." Or as the DOJ's Bradley put it to the Washington Post in 2006: "The president is always right."

It would be a welcome and fitting act of international censure for Spanish judge Baltasar Garzón to indict the perpetrators for war crimes and request extradition. On April 29, according to the Spanish daily El País, he opened an investigation of what he called "an authorized and systematic plan of torture and abuse of persons deprived of liberty without charges and without the elementary rights of all detainees required by the applicable international conventions" in Guantánamo and other prisons, including Bagram (my translation).

There's a certain poetic justice in the idea of a nueva Inquisición secular making the modern torturers squirm through legal means (even if rivers of boiling blood or lakes of burning pitch might have more deterrent value).

But only our own government, under pressure from its citizens, can investigate and punish the hijacking of our Constitution, our national security apparatus, and our moral stature.

If the leaders of the richest and most powerful empire in history can claim that its defense requires them to torture prisoners, what government or armed group can and will not make the same claim?

When millions around the world see those acts of barbarity as an attack on our common humanity and the very idea of the rule of law, only a forceful demonstration that this country rejects torture, is punishing the transgressors, and has restored respect for international norms to our policies and actions can begin to restore confidence and remedy the damage.